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Supreme Court
No. 2005-79-C.A.
(P3/04-1921A)
State                                                                                                 :
v.                                                                                                    :
Robert J. Cardin.                                                                                     :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
O P I N I O N
Chief Justice Suttell, for the Court.   The defendant, Robert J. Cardin, was convicted of
shoplifting in violation of G.L. 1956 § 11-41-20 after a trial in District Court.   The defendant
appealed the verdict and the case was tried de novo before a jury in Superior Court.   The jury
rendered a guilty verdict, and the defendant thereafter was sentenced to six months probation and
fifteen  hours  of  community  service.    The  defendant  now  appeals  from  this  judgment  of
conviction, averring the trial justice erred in (1) denying his motion for judgment of acquittal,
and (2) improperly instructing the jury.   For the reasons set forth in this opinion, we affirm the
judgment.
I
Facts and Procedural History
Bruce Rice, a loss-prevention supervisor employed by Wal-Mart, with thirty-two years
experience in retail loss-prevention, testified that, on April 30, 2004, he observed Mr. Cardin
enter the Wal-Mart on Plainfield Pike in Cranston at approximately 11 a.m.   Mr. Rice grew
suspicious of defendant because he noticed defendant was moving through the store very
quickly.   Mr. Rice then followed defendant to the automotive department.   Mr. Rice watched
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defendant unseal and open a box containing four wheel covers and associated retention wires.1
Mr. Rice continued watching as defendant opened an identical box of merchandise and took one
retention wire from the second box and put it in the first box.   After defendant added the wire to
the first box, he put it in his shopping cart and left the automotive department.
According to Mr. Rice’s testimony, he made his way to the front of the store and watched
as  defendant  paid  for  the  box  containing  the  extra  retention  wire.    Mr.  Rice  approached
defendant in the parking lot, identified himself as Wal-Mart security, and asked him to reenter
the  store.    Mr.  Rice  told  defendant  he  had seen  him tampering  with  merchandise  in  the
automotive department, and defendant began angrily yelling and screaming at Mr. Rice, denying
the accusations.   Mr. Rice then had the Cranston police called, and when an officer arrived,
defendant was placed under arrest.
After  a  jury  trial  and  imposition  of  sentence,  defendant  timely  appealed  from  the
judgment of conviction.
II
Standard of Review
“Under Rule  29 of the Superior Court Rules of Criminal Procedure, a judgment of
acquittal shall be entered when the evidence is not legally sufficient to sustain a conviction.”
State v. Ros, 973 A.2d 1148, 1159 (R.I. 2009).                                                          “Whenever this Court reviews the denial of a
motion for judgment of acquittal, we apply the same standard as that applied by the trial justice;
namely, we ‘must view the evidence in the light most favorable to the state, * * * giving full
credibility to the state’s witnesses, and draw therefrom all reasonable inferences consistent with
guilt.’”   State v. Caba, 887 A.2d 370, 372 (R.I. 2005) (quoting State v. Higham, 865 A.2d 1040,
1 Retention wires are used to secure wheel covers to wheels.
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1048  (R.I.                                                                                             2004)).    The  trial  justice  is  required  to  evaluate   “only  that  evidence  that  the
prosecution claims is capable of supporting proof of guilt beyond a reasonable doubt.” Id.
(quoting State v. Andrades,  725 A.2d  262,  263  (R.I.  1999)).                                        “If that examination reveals
sufficient evidence to warrant a jury verdict of guilt beyond a reasonable doubt,” the trial
justice’s denial of the motion should be upheld. State v. Oliveira, 882 A.2d 1097, 1108-09 (R.I.
2005) (quoting State v. Bulgin, 845 A.2d 308, 311 (R.I. 2004)).
“When this Court reviews jury instructions, it does so on a de novo basis.” State v.
Graham, 941 A.2d 848, 855 (R.I. 2008).  It is well established that, “[o]n review, we examine the
[jury] instructions in their entirety to ascertain the manner in which a jury of ordinary intelligent
lay people would have understood them.” State v. Ibrahim,  862 A.2d  787,  796  (R.I.  2004)
(quoting State v. Kittell, 847 A.2d 845, 849 (R.I. 2004)).   “[T]his Court will not examine a single
sentence apart from the rest of the instructions, but rather  ‘the challenged portions must be
examined in the context in which they were rendered.’” Id. (quoting Kittell, 847 A.2d at 849).
“In accordance with G.L. 1956 § 8-2-38, we determine whether the jury charge ‘sufficiently
addresses the requested instructions and correctly states the applicable law.’” Graham, 941 A.2d
at 855 (quoting State v. Mastracchio, 546 A.2d 165, 173 (R.I. 1988)).                                   “[A]n incorrect charge
warrants reversal only if a jury could have been misled to the prejudice of the complaining
party.” Id.
III
Discussion
A
Judgment of Acquittal
The  defendant  first  contends  that  the  trial  justice  erred  in  denying  his  motion  for
judgment of acquittal.   Section 11-41-20(b)(3) provides that an individual is guilty of shoplifting
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if he or she “[t]ransfer[s] any merchandise displayed, held, stored or offered for sale in a retail
mercantile establishment from one container to another in an attempt to purchase or purchase the
merchandise personally or in consort with another at less than the full retail value with the
intention  of  depriving  the  merchant  of  all  or  any  part  of  the  full  retail  value  of  the
merchandise[.]”
The defendant argues that the state failed to prove that Wal-Mart was deprived of any
“retail value” of its merchandise because it did not present any evidence establishing the value of
the retention wire, as required by § 11-41-20.   Furthermore, defendant argues that the state’s
failure to produce the item itself at trial2 supports a finding that there was no “retail value”
established for the retention wires.    We disagree.    Viewing the evidence in the light most
favorable to the state, sufficient evidence was presented to support a guilty verdict.
The only witness offered by the state was Mr. Rice.   Mr. Rice testified that he saw
defendant open two sealed boxes of wheel covers, remove a retention wire from one box, and
then place it in the other box.   Mr. Rice further testified that the price of a box of four wheel
covers and four retention wires was $11.66 and that the included items are sold as a set.  Thus, if
defendant had wanted to legally obtain a fifth retention wire, he would have had to purchase
another box at the full price of $11.66.   Clearly a box containing only three retention wires loses
some (if not all) of its value; a box that comes with four wheel covers, only three of which can be
secured into place, is of questionable value to a customer.   At the very least, if the box does
retain some value, its value is surely less than a box complete with a full set of wheel covers and
retention wires.
2 At trial, the state introduced into evidence a picture of the box for which defendant had paid.
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Furthermore, the fact that only a photograph of the box was offered into evidence does
not warrant a judgment of acquittal here.  The photograph of the box, together with the testimony
of Mr. Rice, provides sufficient evidence to support a jury verdict of guilt beyond a reasonable
doubt.   We are of the opinion, therefore, that the trial justice did not err in denying defendant’s
motion for judgment of acquittal.
B
Jury Instructions
Mr. Cardin next argues that the trial justice erred by instructing the jury only in the
language  of subsection  (b)(3)  of                                                                     §  11-41-20  even  though  the  “language  of  the  [criminal]
complaint against Mr. Cardin alleged that he violated subsections (1) and (3)” of the statute.  The
criminal complaint states that defendant did “make a transfer of merchandise, to wit, one (1) box
of fourteen (14) inch wheelcovers and retention ring [sic], valued at $11.66, displayed, held,
stored and offered for sale in Wal-Mart, from one container to another and did purchase said
merchandise at less that [sic] the full retail value with the intention of depriving said merchant of
all and [sic] a part of the full retail value of said merchandise, in violation of RIGL [§] 11-41-
20.”  Although the complaint does not specify a violation of either subsections (1) or (3) of § 11-
41-20(b), its language clearly tracks § 11-41-20(b)(3).
The language of subsection (b)(3) of § 11-41-20 is also consistent with the testimony of
Mr. Rice, who said he observed the defendant remove a retention wire from one box, place it in
another box, and then purchase the merchandise containing the five retention wires.   We are
satisfied, therefore, that the trial justice’s jury instruction, in which she quoted the language of
§ 11-41-20(b)(3), was correct.
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IV
Conclusion
For the foregoing reasons, the judgment of the Superior Court is affirmed.   The record
shall be remanded to the Superior Court.
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Supreme Court
No. 2005-79-C.A.
(P3/04-1921A)
State                                                          :
v.                                                             :
Robert J. Cardin.                                              :
NOTICE:   This opinion is subject to formal revision before
publication  in  the  Rhode  Island  Reporter.  Readers  are
requested to notify the Opinion Analyst, Supreme Court of
Rhode Island, 250 Benefit Street, Providence, Rhode Island
02903,  at  Telephone  222-3258  of  any  typographical  or
other formal errors in order that corrections may be made
before the opinion is published.




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          State v. Robert J. Cardin.
CASE NO:                                                No. 2005-0079-C.A.
                                                        (P3/04-1921A)
COURT:                                                  Supreme Court
DATE OPINION FILED:   February 5, 2010
JUSTICES:                                               Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
WRITTEN BY:                                             Chief Justice Paul A. Suttell
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Netti C. Vogel
ATTORNEYS ON APPEAL:
For Plaintiff:     Aaron L. Weisman
Department of Attorney General
For Defendant:  Paula Rosin
Office of the Public Defender

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